1 CRA No. 158 of 2023 2025:CGHC:15141-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 158 of 2023 [Arising out of judgment dated 30.06.2022 passed in the Special Criminal Case under the POCSO Act 18/2016 by the Additional Sessions Judge/Fast Track Special Court (POCSO), Raigarh, District Raigarh, Chhattisgarh]  Champai Urf Champa Munda S/o Veer Singh Munda, aged about 29 years, R/o Village Baidmara, Police Station Sonva, District - West Sinbhum (Jharkhand) at Present R/o B-78 C.D.D.A. felt colony, Thana Rajauri Garden, New Delhi. --- Appellant versus  State of Chhattisgarh through the Station House Officer, Police Station Kotararoad, District – Raigarh, Chhattisgarh. --- Respondent For Appellant :- Mr. Manoj Kumar Jaiswal, Advocate. For Respondent-State :- Mr. Rahul Tamaskar, Government Advocate. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board (28.03.2025) ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.04.07 17:27:48 +0530 2 CRA No. 158 of 2023 Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, validity and correctness of the judgment dated 30.06.2022 passed by the Additional Sessions Judge/Fast Track Special Court (POCSO), Raigarh, District Raigarh, Chhattisgarh, in the Special Criminal Case under the POCSO Act 18/2016, by which the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 363/34 of the IPC Rigorous imprisonment for 3 years with fine of 1,000/-; in default of ₹ payment of fine amount the appellant has to undergo rigorous imprisonment for 6 months. Under Section 370(4)/34 of the IPC Imprisonment for life with fine of ₹ 5,000/-; in default of payment of fine amount the appellant has to undergo rigorous imprisonment for 1 year. Under Section 374/34 of the IPC Rigorous imprisonment for 6 months with fine of ₹ 500/-; in default of payment of fine amount the appellant has to undergo rigorous imprisonment for 1 month. All the sentences are directed to run concurrently. 3 CRA No. 158 of 2023 Prosecution story:- 2. Case of the prosecution, in brief, is that 6-7 months prior to 21.01.2016, in the rented house of Girdhari Yadav, at Kiradimal Nagar Ward No.6, Raigarh, Chhattisgarh, the appellant herein along with other co-accused persons namely Turkee, Virendra, Monika and Lakhan Bandra @ Sarjom (appellant-Lakhan Bandra @ Sarjom has already been acquitted of the charges framed against him by this High Court in the case of Lakhan Bandra @ Sarjom v. State of Chhattisgarh 1 ) in furtherance of their common intention, abducted the minor victims A & B (PWs-3 & 13) from the lawful guardianship of their parents by practicing fraud, deception and inducement and took them to Delhi. Further, acquitted co-accused Lakhan Bandra @ Sarjom took mionr victim (PW-3), aged about 10 years, to Delhi and engaged her as maid servant and she was compelled to perform household works, cleaning and etc. However, Lakhan Bandra @ Sarjom (acquitted co-accused) sold the victim B (PW-13), aged about 14 years, to the present appellant, who engaged her as maid servant and she was compelled to perform household works, 1 CRA No.1678 of 2018; decided on 30.09.2022 4 CRA No. 158 of 2023 cleaning and etc. The appellant herein has took minor victim B (PW-13) to the house of one Monika Chawla where she was forcefully engaged as maid servant and was compelled to perform household works, cleaning etc., and she was harassed and exploited too. 3. The said incident was reported by mother (PW-2) of PW-3, reported the written complaint vide Ex.P/5 pursuant to which FIR was registered vide Exs.P/7 & P/37. Consequently, on 27.01.2016 victim A (PW-3) was recovered by recovery panchnama (Ex.P/8) and similarly, victim B (PW-13) was also recovered by recovery panchnama (Ex.P/32). Crime details form was prepared vide Ex.P/7. Victims were medically examined. As per medical examination of victim B (PW-13) (Ex.P/28C) proved by Dr. R.K. Agrawal, no external injuries were found over the body of the victim B. As per age certification of victim A (PW-3) vide Ex.P/26, the age of the victim A (PW-3) was between 10 to 12 years proved by Dr. Nityanand Kumar (PW-17) and as per age certification of victim B (PW-13) vide Ex.P/25, the age of the victim of B (PW-13) was between 14 to 16 years at the time of offence proved by Dr. Nityanand Kumar (PW-17). Wheels of 5 CRA No. 158 of 2023 investigation started running and the appellant herein and other co-accused were arrested. 4. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 5. In order to bring home the offence, prosecution has examined as many as 17 witnesses and exhibited 38 documents, whereas, defence, in support of its case, has neither examined any witness nor exhibited any document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the 6 CRA No. 158 of 2023 opening paragraph of the judgment, against which the appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 7. Mr. Manoj Kumar Jaiswal, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that the main accused Lakhan Bandra @ Sarjom has already been acquitted by this Court vide judgment dated 30.09.2022 passed in Criminal Case No.1678 of 2018 and the case of the present appellant is better than the main accused Lakhan Bandra @ Sarjom, therefore, the present appellant is also entitled for acquittal on the basis of benefit of doubt. He would further submit that acquitted co-accused Lakhan Bandra @ Sarjom and the present appellant both were tried for the offence under Sections 363/34, 374/34 of the IPC and Lakhan Bandra @ Sarjom was acquitted of the said charges and Lakhan Bandra @ Sarjom was also tried for offence under Section 370(5)/34 of the IPC, but he has been acquitted of the said charge, therefore, once co-accused 7 CRA No. 158 of 2023 Lakhan Bandra @ Sarjom was acquitted of the said charges, the present appellant is also entitled for acquittal of the charges under Sections 363/34, 370(4)/34 and 374/34 of the IPC. He would further submit that there is no individual charge framed for offence under Sections 363/34, 370(4)/34 and 374/34 of the IPC against the present appellant, therefore, the appellant is entitled for acquittal in light of decision of the Supreme Court in the matter of Sukhram v. State of Madhya Pradesh 2 and the appeal deserves to be allowed. 8. Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that the case of Lakhan Bandra @ Sarjom is clealry distinguishable to the case of the present appellant and, therefore, the trial Court has rightly convicted the appellant for the offences in question and accordingly, the present appeal of the present appellant deserves to be dismissed. 2 1989 Supp (1) SCC 214 8 CRA No. 158 of 2023 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. Discussion & Analysis:- 10.Admittedly, the present appellant and the acquitted co- accused Lakhan Bandra @ Sarjom both were tried for offence under Section 370 read with Section 34 of the IPC, which relates to “trafficking of person” though in the present case the appellant has been tried for offence under Section 370(4)/34 of the IPC and the acquitted co-accused Lakhan Bandra @ Sarjom was tried for offence under Section 370(5)/34 of the IPC, but the nature of offence is the same as, as per the prosecution case both have committed the offence relating to “trafficking of person”. As per the case of prosecution, the allegation against the appellant is that acquitted co-accused Lakhan Bandra @ Sarjom took victim B (PW-13) and sold her to the present appellant and in the house of the present appellant PW-13 used to work as maid and thereafter, the present appellant took her to the house of one Monika Chawla where she was forcefully engaged as 9 CRA No. 158 of 2023 maid servant and was compelled to perform household works, cleaning etc., and she was harassed and exploited too. However, this Court in the matter of Lakhan Bandra @ Sarjom (supra) while acquitting Lakhan Bandra @ Sarjom has held in paragraph No.28 which states as under:- “28. Reverting to the facts of the present case in light of aforesaid discussion, it is quite vivid that admittedly, two victims (PW5 & PW17) were taken from Kirodimal Nagar, Raigarh to Delhi, but they have joined the company of the appellant of their own for the purpose of getting employment / for the purpose of roaming at Delhi, which is apparent from the statements of their mothers Kalyani (PW4) (mother of victim No.2) and Raimuni Gagrai (PW11) (mother of victim No.1) and they were asked to perform household works, but the prosecution has failed to bring home the offence that they were exploited within the meaning of Section 370(1) of the IPC particularly there was no allegation of physical exploitation or sexual exploitation or they have been subjected to slavery or practices similar to slavery, servitude or forced removal of organs. However, salary of one of the victim (victim No.1) has not been paid, she was entitled for that, but the appellant cannot be convicted for offence under Section 370(5) of the IPC.” 11.As such, the main accused Lakhan Bandra @ Sarjom has already been acquitted by this Court holding that the prosecution has failed to bring home the offence beyond reasonable doubt as the prosecution has failed to prove that 10 CRA No. 158 of 2023 the victim B (PW-13) was exploited within the meaining of Section 370(1) of the IPC particularly, there was no allegation of physical exploitation or sexual exploitation or she has been subjected to slavery, servitude or forced removal of organs. Even victim B (PW-13) has not supported the case of the prosecution and decleared hostile. In that view of the matter, the present appellant is also entitled for acquittal for offence under Section 370(4) of the IPC. 12.Further, a careful perusal of charge framed against the present appellant would show that the present appellant was charged along with co-accused Lakhan Bandra @ Sarjom with the aid of Section 34 of the IPC and no independent charge has been framed against the present appellant for offence under Section 370 of the IPC which is required in light of the decision of the Supreme Court in the matter of Sukhram (supra). Even co-accused Lakhan Bandra @ Sarjom has already been acquitted by the judgment of this Court dated 30.09.2022 passed in CRA No.1678 of 2018. The Supreme Court in the matter of Krishna Govind Patil v. State of Maharashtra 3 has held that if four persons charged under 3 AIR 1963 SC 1413 11 CRA No. 158 of 2023 Section 302 read with Section 34 of the IPC out of which three has been acquitted, therefore, fourth cannot be convicted for having committed the offence along with one or more of the acquitted persons. Similarly, in the matter of Baul and another v. The state of Uttar Pradesh 4 , their Lordships of the Supreme Court has held that conviction of two accused under Section 302 read with Section 34 of the IPC, out of which acquittal of one in appeal on the ground of benefit of doubt, the other accused cannot be convicted simpliciter under Section 302 of the IPC. Relying upon the aforesaid principles the Supreme Court in the matter of Sukhram (supra) has held in paragraph No.10 & 11 as under:- “10. There is another aspect of the matter which has also escaped the notice of the High Court when it sustained the conviction of the appellant under Section 302 read with Section 34 and Section 436 read with Section 34 I.P.C. while acquitting accused Gokul of those charges. Though the accused Gokul and the appellant were individually charged under Sections 302 and 436 I.P.C., they were convicted only under the alternative charges under Section 302 read with Section 34 and Section 436 read with Section 34 I.P.C. by the Sessions Judge. Consequently, the appellant's convictions can be sustained only if the High Court had sustained the convictions awarded to accused Gokul also. Inasmuch as the High Court has given the benefit of doubt to accused Gokul and acquitted him, it follows that the appellant's 4 AIR 1968 SC 728 12 CRA No. 158 of 2023 convictions for the two substantive offences read with Section 34 I.P.C. cannot be sustained because this is a case where the co-accused is a named person and he has been acquitted and by reason of it the appellant cannot be held to have acted conjointly with anyone in the commission of the offences. This position of law is well settled by this Court and we may only refer to a few decisions in this behalf vide Prabhu Babaji v. State of Bombay5, Krishna Govind Patil v. State of Maharashtra6 and Baul v. State of U.P7..” 11. It therefore, follows that even if the evidence of the prosecution witnesses did not suffer from any infirmity, the acquittal of the other named accused Gokul would stand in the way of the appellant being convicted constructively under Section 34 IPC for the substantive ofefnces under Section 302 and Section 436 IPC.” 13.Similarly, the principle of law laid down in Sukhram (supra) has been recently followed with approval by the Supreme Court in the matter of Rajesh Tandi v. State of Chhattisgarh 8 decided on 12th November, 2024, in which their Lordships of the Supreme Court have held as under:- “In this regard, the judgment of Sukhram (supra) was relied upon. Paragraph 10 of the said judgment reads as under:- “10. There is another aspect of the matter which has also escaped the notice of the High Court when it sustained the conviction of the appellant under Section 302 read with Section 34 and 5 AIR 1956 SC 51 6 AIR 1963 SC 1413 7 AIR 1968 SC 728 8 SLP (CRL.) No.7609/2024 13 CRA No. 158 of 2023 Section 436 read with Section 34 I.P.C. while acquitting accused Gokul of those charges. Though the accused Gokul and the appellant were individually charged under Sections 302 and 436 I.P.C., they were convicted only under the alternative charges under Section 302 read with Section 34 and Section 436 read with Section 34 I.P.C. by the Sessions Judge. Consequently, the appellant's convictions can be sustained only if the High Court had sustained the convictions awarded to accused Gokul also. Inasmuch as the High Court has given the benefit of doubt to accused Gokul and acquitted him, it follows that the appellant's convictions for the two substantive offences read with Section 34 I.P.C. cannot be sustained because this is a case where the co-accused is a named person and he has been acquitted and by reason of it the appellant cannot be held to have acted conjointly with anyone in the commission of the offences. This position of law is well settled by this Court and we may only refer to a few decisions in this behalf vide Prabhu Babaji v. State of Bombay, Krishna Govind Patil v. State of Maharashtra and Baul v. State of U.P..” Applying the aforesaid judgment to the present case, we find that when the substantive offence under Section 302 read with Section 34 IPC cannot be sustained as against the co-accused, it could not have been sustained only as against accused No.1, the appellant herein. This is because the offence under Section 302 IPC was not attributed to the appellant individually and independent of other co-accused. The High Court has lost sight of the said fact. It is also necessary to note that the State has not filed any appeal as against the acquittal of accused Nos.2 to 4. That apart, on perusal of the deposition of PW-9, it is noted that the appellant herein had hit her ear with his hand but she also stated that one of the accused 14 CRA No. 158 of 2023 was holding Gupti in his hand but she could not tell which accused had held which weapon. Therefore, there is no concrete evidence attributing any overt act, particularly against the appellant herein, as already noted there is no independent substantive charge vis- a-vis the appellant herein under Section 302 of the IPC. It is only along with other accused i.e. Section 302 read with Section 34 IPC. In the circumstances, we find that the High Court was not right in dismissing the appeal filed by the appellant herein and convicting him under Section 302 read with Section 34 IPC. Therefore, the appellant is also acquitted of the said charges for the offences against him.” 14. Coming to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above stated judgments, it is quite vivid that the present appellant was charged along with co-accused Lakhan Bandra @ Sarjom with the aid of Section 34 of the IPC and no substantive independent charge has been framed against the present appellant for offences in question and even the victim (PW-13) has not clealry supported the case of the prosecution and declared hostile and also the co-accused Lakhan Bandra @ Sarjom has already been acuqitted by this Court vide judgment dated 30.09.2022 passed in CRA No.1678 of 2018. Therefore, in view of decision of the Supreme Court in the matter of Sukhram (supra) followed in the matter of Rajesh 15 CRA No. 158 of 2023 Tandi (supra), the appellant is also entitled for acquittal on the basis of principles of benefit of doubt. Conclusion:- 15. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 30.06.2022 passed by the trial Court convicting and sentencing the appellant for the offences under Sections 363/34 and 370(4)/34 of the IPC, is hereby set aside and the present appellant is entitled for acquittal on the basis of principle of benefit of doubt from the aforesiad charges. 16. So far as the conviction and sentence of the appellant for the offence under Section 374/34 of the IPC, the prosecution has been able to bring home the offence beyond reasonable doubt and even the acquitted co-accused Lakhan Bandra @ Sarjom has also been convicted for the said offence along with the present appellant with the aid of Section 34 of the IPC and also the same has been found proved by this Court. As such, the present appellant has rightly been convicted and sentenced for offence under Section 374/34 of the IPC. However, the present appellant has already completed his jail 16 CRA No. 158 of 2023 sentence as awarded by the trial Court for the offence under Section 374/34 of the IPC as he is in jail since 18.02.2019, but the fine amount shall remain intact. Accordingly, if the fine of 500/- is already paid and if not required in any other ₹ matter, the appellant shall be released from jail as at present he is stated to be in jail. If the fine has not yet been paid, the said fine shall be paid prior to the release of the appellant. 17. Consequently, this criminal appeal is partly allowed to the extent indicated herein above. 18. 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 sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ankit