Yugal Kishor Diwan Vs State of Chhattisgarh

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2025:CGHC:53877

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 140 of 2025

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Yugal Kishor Diwan S/o Umesh Kumar Diwan Aged About 24 Years R/o Pali, Bastipara, Police Station- Bhimkhoj (Khallari), District : Mahasamund, Chhattisgarh

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... Appellant

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versus

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State of Chhattisgarh Through Station House Officer, Police Station- Rajim, District : Gariyabandh, Chhattisgarh

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... Respondent

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For Appellant : Mr. Ramsajiwan, Advocate For State : Ms. Priya Sharma, Panel Lawyer

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(Hon’ble Shri Justice Arvind Kumar Verma)

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Order on Board

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04/11/2025

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With the consent of learned counsel for the parties the matter is heard finally.

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Digitally signed by ASHUTOSH ASHUTOSH MISHRA MISHRA Date: 2025.11.11 16:58:27 +0530

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This criminal appeal preferred by the appellant under Section 415 (2) of the Bhartiya Nagrik Suraksha Sanhita, 2023 is directed against the impugned judgment dated 23/01/2024 passed by the Additional Sessions Judge, Fast Track Special Court (POCSO and Rape Cases) Gariyaband,

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District Gariyaband, C.G. in POCSO Case No.39/2022 whereby the

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appellant has been convicted and sentenced as under:-

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Conviction	Sentence
Under Section 366 of the Indian Penal Code, 1860	R.I. for Two Years and fine of Rs.1000/- in default of payment of fine further R.I. of 01 month
Under Section 376 (2) (<+) of the Indian Penal Code, 1860	R.I. for 10 Years and fine of Rs.2000/- in default of payment of fine further R.I. of 01 month

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The case of the prosecution, in brief, is that the complainant (father of the victim) lodged a report in Police Station Rajim to the effect that his daughter/victim aged 17 years 02 months 03 days her date of birth is 25/05/2005, she has studied till class 10th, who had dinner with the family on the night of 28/07/2022, when he woke up at about 12 o'clock in the night, he saw that his daughter/victim was not at home, when he inquired around, she could not be found. On the report that some unknown person had lured and kidnapped her minor daughter and taken her away, a missing person number 30/2022 and crime number 265/2022 under section 363 of IPC were registered and taken into investigation.

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During the investigation, on 29/08/2022, when the victim voluntarily came to the police station, she was recovered and her statement was recorded by a female police officer, a female child welfare officer and under Section 164 of the IPC. In her statement, the victim stated that she is a minor and had gone to village Shermordha, district Mahasamund, three to four years ago with her parents to make bricks. Jugal Kishore Dewan had also come with his parents to make bricks. From that time,

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she became acquainted with the accused, fell in love, and had a love affair and would frequently communicate via mobile phone. On the night of 28/07/2022, she became angry with her father for talking too much on the mobile phone and left the house. She contacted Jugal Kishore Dewan via mobile and called him to Fingeshwar. After Jugal Kishore's arrival, she went to Fingeshwar on a motorcycle and stayed at Jugal Kishore Dewan's maternal uncle's and aunt's homes in Raipur, Tendukona, Mahasamund, and several other places. During this time, Jugal Kishore Dewan, under the pretext of marriage, had physical relations (sexual intercourse) with the victim multiple times. Medical examinations were conducted on the victim and Jugal Kishore, and the victim's and the accused's underwear and vaginal slides were seized and sent to Raipur for FSL. The accused was found guilty under sections 366, 376 (2) (d) of the Indian Penal Code and 6 of the POCSO Act, and the above sections were added. The accused was duly arrested on 30/08/2022 at 13:50, taken on judicial remand, and imprisoned. During the investigation, the victim's marksheet, the mutation register, the mobile phone and the motorcycle used in the incident were seized from the accused's possession. A site map of the scene was prepared. After the investigation in the case was completed, sufficient evidence was found against the accused under sections 363, 366, 376 (2) (d) of the Indian Penal Code and 6 of the POCSO Act. After completing the investigation, charge sheet number 322/2022 dated 27/09/2022 was prepared and presented in the court.

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In this case, for testing the seized exhibits, the FSL draft along with the

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item description was sent to the laboratory for chemical testing through the Superintendent of Police, Gariaband and an exhibit receipt was obtained and after receiving the report after the chemical test and recording the statements of the remaining witnesses, after complete investigation, the charge sheet was filed.

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The appellant abjured his guilt during trial and claimed to be tried. The prosecution on its behalf examined as many as 10 witnesses and exhibited 32 documents. The learned trial Court after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal.

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Learned counsel for the appellant would submit that the victim has stated in her statement recorded under Section 164 Cr.P.C. as well as in her Court statement that she is in love affair with the appellant/accused and she herself called the appellant and she has not leveled allegation of rape. He would next contend that the doctor PW-3 has opined that there is no internal and external injury on the body parts of the victim. He would next contend that the FSL report also do not support the case of the prosecution. He would next contend that the prosecutrix in her cross-examination at para 9 has stated that appellant did not commit rape with her while doing work in the brickyard and she has accepted that she on her own will joined the company of the appellant. He would lastly submit that the impugned judgment of conviction and order of sentence is liable to be interfered and the appellant is liable to be acquitted from the said charges.

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Per contra, learned State counsel would submit that the prosecution has

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proved its case beyond the reasonable doubt. Accordingly, the judgment of the learned Sessions Judge is well merited which do not call for any interference.

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I have heard learned counsel for the parties and perused the evidence.

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Victim PW-1 in her statement at para -2 has stated that Last year, she went with her parents to work at a brick kiln in Sher Mordha village, Mahasamund district. The accused also went there to work. She met the accused there, and they used to communicate. In June 2022, She returned with her parents from the brick kiln to her village, Kaundkera. On July 28, 2022, the accused called her and came to her village on a bike at night. He called her and told her to leave the house. She left the house around 10:00 pm. After that, the accused and she went by bike to the accused's aunt's house in Navadih. She further in her para 3 has stated that in Navadih, the accused and she stayed overnight at the accused's aunt's house. The next morning, the accused and she traveled by bike to the Mahasamund bus stand. The accused's nephew, Manish, accompanied the accused to her house and from there to the accused's aunt's house. From the accused's aunt's house, Manish also traveled to the Mahasamund bus stand and returned with his bike. From the Mahasamund bus stand, the accused and she traveled to Raipur. From Raipur, the accused and she immediately returned by bus to Mahasamund near the river crossing. From there, they traveled by bus to Jhalap, and from Jhalap, they traveled by bus to Tendukona. She went to Gahnaghata. The accused and she stayed at the accused's brother's house

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for a week. The accused had sexual intercourse with me twice in Gahnaghata. She further in para 4 has stated that on August 1, 2022, the accused and she traveled by bus from Gahnaghata to the accused's village, Pali, where they stayed for approximately a week. The accused did not have sexual intercourse with her at his home. Afterward, they traveled by bus to Raipur and stayed at the accused's sister's house in Bhanpuri, Raipur, for approximately two weeks. In Bhanpuri, the accused did not have sexual intercourse with her. In Bhanpuri, the accused's sister told her that there was work for them in Kerabari, Bemta. Afterward, the accused and she traveled with his sister to Bemta, where they stayed for two or three days. Afterward, she returned to Bhanpuri with the accused's sister, while the accused remained in Bemta. When she returned from Bemta to Bhanpuri, she had the accused's mobile phone with her, and the accused's parents called her to Rajim. She then traveled alone from Bhanpuri to Rajim. She further in her cross-examination at para 9 has stated that it is correct to say that the accused did not commit any misdeeds against her while she was working at the brick kiln. It is correct to say that she went with the accused of her own free will. It is correct to say that the accused did not forcibly take her with him. It is correct to say that she went to all the places mentioned above with the accused of her own free will. I loved the accused.

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The prosecutrix in her statement under Section 164 of Cr.P.C. stated that she knows the accused for the last three years. They both used to work in the same brickyard and there they came in contact with each other and they used to talk over mobile phone. She further stated that they both

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loved each other and wanted to perform marriage. She has admitted that she called the accused and went along with him to Fingeshwari on his motorcycle. Thereafter, she travelled many places i.e. Raipur, Tendukona, Mahasamund and she voluntarily joined the company of the appellant.

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Dr. Prachi Umbarkar (PW-3) has stated that there was no external or internal injury on the body part of the prosecutrix and no sign of immediate sexual intercourse were present.

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Perusal of the judgment of the trial Court would show that the trial Court has acquitted the appellant for the offence punishable under Section 363 of the IPC and Section 06 of the Protection of Children from Sexual Offences Act, 2012 and has convicted him for the offence under Section 366 and Section 376 (2) (<+) of the Indian Penal Code, 1860. As per deposition of the prosecutrix PW-1 she has specifically stated that she went with the appellant on her own will on 28/07/2022 on his motorcycle and visited various places and stayed there. It is also pertinent to mention here that in her cross-examination at para 10 she has deposed that the appellant wanted to perform marriage with her and used to say that if she will not perform marriage with the appellant he will commit suicide. Therefore, it is crystal clear from the evidence of the victim herself that it is a case of elopement and there was affair between the appellant and the prosecutrix.

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It is also apparent from the record that during the course of investigation the prosecutrix has been recovered by the Investigating Officer and the

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prosecutrix in her statement under Section 164 of Cr.P.C. has stated that she was acquainted with the appellant and on her own will she went along with the appellant and there is no statement made by the victim that the appellant has committed rape in the statement recorded under Section 164 of the Cr.P.C. recorded by the I.O. Therefore, it is also crystal clear from the statement made by the victim either under Section 164 Cr.P.C. and deposition in the Court it is apparent that the victim was a consenting party.

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It is a settled proposition that when 2-3 views came to fore and the victim herself comes out with categorical date of birth, the evidence which favours the accused is required to be admitted. This proposition has been been laid down in the matter of Kali Ram vs. State of H.P. reported in (1973) 2 SCC 808 and has been reiterated in the matter of Pradeep Kumar vs. State of Chhattisgarh reported in (2023) 5 SCC 350 wherein, relevant para-27 reads as under :-

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“27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.”

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Applying the aforesaid well settled principles of law and for the reasons stated hereinabove, I allow the appeal and set aside the impugned judgment dated 23/01/2024. Appellant stands acquitted of the charges leveled against him. The appellant is reported to be 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 CrPC (now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the appellant is directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.10,000/- with one reliable 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 lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

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SD/- (Arvind Kumar Verma) JUDGE

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ashu

Yugal Kishor Diwan v. State of Chhattisgarh

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What is this about?

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Yugal Kishor Diwan v. State of Chhattisgarh

Case brief

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