Azad Koshle vs State Of Chhattisgarh

The appellant would call in question the legality and validity of his conviction under Section 363 & 366(A) of the IPC and under Section 4 of the Protection of Children from Sexual Offences Act, 2012, and sentence of rigorous imprisonment for 5 years, 5 years & 10 years along with fine amount of Rs.250/-, Rs.250/- & Rs.500/-, respectively, with usual default stipulation imposed by the Additional Sessions Judge/First FTSC (POCSO), Bilaspur in Special ST No.12/2020.

Case of the prosecution, in brief, is that the father of the prosecutrix/victim has lodged an FIR on 29.12.2019 at Police Station Sarkanda, District Bilaspur stating that his daughter/victim, aged about 17 years 7 months, has studied up to Class-6th and thereafter she left the studies and started washing utensils in Bangali Para. On 28.12.2019, at about 10 am, the victim left the house saying that she is going for the work. When she did not return, a search was made. As the father of the victim could not trace her whereabout, the FIR (Ex.-P/1) was lodged against unknown person.

During investigation, spot map was prepared vide Ex.-P/4. The prosecutrix was recovered from the possession of the appellant vide Ex.-P2A. Statement of the prosecutrix was recorded vide Ex.-P/10. The prosecutrix was sent for medical examination to the CIMS Hospital, Bilaspur vide Ex.-P/11. After examination, vaginal slides and panty of the prosecutrix was seized vide Ex.-P/18. The appellant was arrested and sent for medical examination to the CIMS Hospital, Bilaspur. Underwear of the appellant was seized vide Ex.-P/19.

After completing the investigation, charge sheet was filed. The appellant abjured the guilt. His statement was recorded under Section 313 of the CrPC wherein he pleaded false implication. In order to prove its case, the prosecution has examined as many as 11 witnesses. After conclusion of trial, the trial Court convicted and sentenced the appellant as mentioned above.

Learned counsel for the appellant would submit that the trial Court has not appreciated the evidence properly. Material witnesses have not supported the case of the prosecution and turned hostile and only on the basis of conjectures and surmises, order of conviction has been passed. Therefore, learned counsel prays to allow the Appeal and set aside the impugned judgment.

On the other hand, learned State Counsel would support the impugned judgment.

I have heard learned counsel for the parties at length and perused the record.

The prosecutrix (PW-2) has turned hostile completely and not supported the case of the prosecution. Even after declaring hostile by the prosecution, she has denied her statement recorded during investigation (Ex.-P/10). Her mother (PW-3) has also not supported the case of the prosecution and specifically stated that at the time of incident, her daughter becomes major and further admits that in the School Register, the date of birth was not correctly recorded. The victim’s father has stated that he has beaten the prosecutrix, therefore, she became annoyed and left the house. He further stated that the victim has also not narrated any incident to him and he has also turned hostile. In his cross-examination, he has specifically stated that the appellant did not commit any wrong with his daughter.

Even in the impugned judgment, in spite of serious infirmities in the evidence of the prosecution witnesses and it was also observed in para-46 of the impugned judgment that though the victim, her father and mother have not supported the case of the prosecution and they have also specifically stated that the appellant has done nothing wrong with the victim, as also as per the evidence of (PW-9) Dr. Tasnim Anjum, who gave negative opinion, as no sign of injury was found, only on the basis that during examination of the prosecutrix, the doctor has taken history in which the victim has stated about consensual sexual intercourse with her boy friend, the learned trial Court wrongly assumed and roped in the appellant on the basis of conjectures and surmises. The prosecutrix was not confronted with the statement which was used against the appellant that any such statement was given by her to the doctor.

From the aforesaid evidence, this Court is of the considered opinion that as against the appellant, there is no incriminating evidence put forth by the prosecution. Even on nil evidence, the trial Court has passed the impugned judgment, which is totally perverse.

For the foregoing, the Appeal succeeds and the same is allowed. Conviction and sentence imposed upon the appellant under Sections 363 & 366-A of the IPC and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 are set aside and he is acquitted of the said charges. He be released forthwith unless required to be detained in any other case, on his furnishing a personal bond for a sum of Rs.5,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of 6 months as required under Section 437-A of the CrPC. The appellant shall appear before the higher Court as and when directed.

Let a copy of the judgment along with record of the trial Court be sent forthwith for necessary compliance.