1 2025:CGHC:11739 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 426 of 2025 1 - Shyam Kumar Sahu S/o Punaram Sahu Aged About 27 Years R/o Shitlapara, Ward No. 21, Nayapara, Rajim, Police Station- Gobra- Nawapara, District Raipur, Chhattisgarh. ... Appellant(s) versus 1 - State Of Chhattisgarh Through The District Magistrate, Gariyaband, District Gariyaband, Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Deepak Kaushik, Advocate For Respondent(s) : Mrs. Pragya Shrivastava, Dy. G.A. for the State. Hon’ble Shri Justice Arvind Kumar Verma, Judge Order on Board 10/03/2025 1. With the consent of counsel for the parties, the matter is heard fi- nally. 2. This criminal appeal has been filed under Section 415 (2) of BNSS, 2023 by the appellant against the judgment of conviction and order of sentence dated 17.12.2024 passed by the Additional 2 Sessions, Judge, Fast Track Special Court (POCSO and Rape Cases) Gariyaband (C.G.), in Sessions Trial No. 42/2022, whereby the appellant has been convicted and sentenced as fol- lows:- Conviction Sentence U/s 458 of IPC R.I. for 4 years and fine of Rs. 1000/-, in default of fine additional R.I. for 1 month U/s 354 of IPC R.I. for 3 years and fine of Rs. 1000/-, in default of fine, additional R.I. for 1 month U/s 506 Part-II of IPC R.I. for 1 year and fine of Rs. 500/-, in default of fine, additional R.I. for 20 days U/s 294 of IPC R.I. for 2 months and fine of Rs. 500/-, in default of fine, additional R.I. for 20 days U/s 323 of IPC R.I. for 2 months and fine of Rs. 500/-, in default of fine, additional R.I. for 20 days. 3. Briefly stated facts of the case leading to the disposal of this appeal are that the prosecutrix is a major lady and lives in Mathpurena, Bajrang Chowk, Raipur, District-Raipur (C.G.) and is working as CHO and posted at Sub-Health Centre in Village Sirrikala since last 5 years. On 22.05.2022 the prosecutrix lodged the FIR in the Police Station Fingeshwar, District- Gariyaband (C.G.) to the effect that the appellant herein established sexual relationship on many occasions with the prosecutrix on the pretext of marriage. On 21.05.2022 at about 5:00 PM when the prosecutrix came to CHC, Fingeshwar to attend official meeting of 3 her department and after the meeting, she came back to her house where she lives on rent and at around 8:00 PM the present appellant forcefully entered her house and caught hold the prosecutrix and outrage her modesty. Also, the appellant abused her in filthy language and threatened and assaulted her. 4. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 13 witnesses. Statement of the accused/appellant under Section 313 Cr.PC was also recorded in which he pleaded his innocence and false implication in the case. No Defence has been examined in support of its case. 5. After hearing the parties and going through the material available on record including the evidence of the witnesses, learned Additional Sessions Judge Fast Track Special Judge (POCSO and Rape Cases), Gariyaband (C.G.) has convicted and sentenced the accused/appellant as described in paragraph No. 2 of this judgment. Hence this appeal. 6. Learned counsel for the appellant submits that the prosecution has utterly failed to prove its case beyond all reasonable doubts. He further submits that the judgment of the trial court is based on surmises and conjuctures. Alternatively, counsel for the accused/appellant submits that if the conviction part of the judgment impugned is not going to be interfered with, keeping in mind the fact that the accused/appellant has already remained 4 behind the bars since 17.12.2024, the sentence imposed on him may be reduced to the period already undergone. 7. On the other hand, counsel appearing for the State supports the judgment impugned and submits that taking into consideration the statements of victim (PW-1) and Dr. Seema Alone (PW-2) which gets corroboration from the testimony of other independent witnesses, the findings recorded by the Additional District and Sessions Judge, Fast Track Special Judge (Rape and POCSO Cases), Gariyaband (C.G.) holding the accused/appellant guilty under Sections 458, 354, 506 Part-II, 294, 323 of IPC being based on proper appreciation of the evidence on record are fully justified and do not call for any interference in this appeal. 8. Heard counsel for the parties at length and went through the evidence on record with utmost care and caution. 9. P.W.-01/ victim has deposed in her statement that in the month of April, 2022 she attended meeting at CHC Fingeshwar and thereafter she went to her rented house at Fingeshwar where at around 8:00 PM accused came into her house and started abusing and assaulting her. She contended that the accused was her boyfriend and they knew each other from 6 months. She further deposed that she established physical relation with the accused by her consent but on the pretext of marriage. 10. P.W.-02/ Dr. Seema Alone who medically examined the victim and gave her report (Ex.P-11) has stated no finding present to 5 recent sexual intercourse, no external and injury mark seen at the time of examination. 11. P.W.-04/father of victim has deposed that accused used to harass her daughter and on 21.05.2022 when her daughter/ victim was at her rented house in Fingeshwar the accused entered her house and assaulted her and threatened her. The accused had established physical relation with her daughter on the pretext of marriage. 12. P.W.-05/ brother of victim has deposed that on 21.05.2022 at around 8:00 pm to 8:30 pm his sister/victim called him and told him that the accused has forcefully entered her house and is assaulting and threatening her. Then he called his parents and informed them about the incident. He further deposed that his sister has told him that the accused had established physical relation with her on the pretext of marriage. 13. Now, the question is, whether the trial Court is justified in convicting the appellant for offence under Section 294 of the IPC? 294. Obscene acts and songs.— Whoever, to the annoyance of others— (a)does any obscene act in any public place, or (b)sings, recites or utters any obscene song, ballad or words, in or near any public place,shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. 14. Looking to the statements of P.W.-01, PW-04, PW-05 the incident took place at the rented house of the prosecutrix at Fingeshwar and at the time 6 of incident, only the prosecutrix and the accused was present at the place of incident, therefore, the house of the prosecutrix is not a public place. Therefore, Trial Court has wrongly convicted the appellant under Section 294 of IPC. Hence, the appellant stands acquitted under Section 294 of IPC. 15. So far as conviction under Sections 458, 354, 506 Part-II and 323 of IPC is concerned, after taking a cumulative note of the medical evidence collected by the prosecution; keeping in mind the medical report (Ex.P- 11), and taking into consideration the statements of witnesses, this Court has no hesitation to hold that the findings recorded by the trial Court convicting the accused/appellant under Sections 458, 354, 506 Part-II and 323 of IPC are based on due appreciation of the evidence on record and deserve to be and are hereby maintained. 16. As regards sentence, considering the facts and circumstances of the case, particularly, the fact that there was a love affair by and between the parties and they have established the physical relationship voluntarily on many occasions, the sentence of 4 years under Section 458, 3 years under Section 354, 1 year under Section 506 Part-II, and 2 months under Section 323 of IPC imposed by the trial Court appears to excessively on the higher side and therefore, this Court is of the opinion that it would be in the interest of justice if the sentence imposed on him is reduced to rigorous imprisonment for 1 year. However, fine imposed by trial Court is maintained. 17. The appellant is in jail and he shall serve out the sentence as modified above. 18. With the aforesaid observations, the criminal appeal is partly allowed. 7 19. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. SD/- (Arvind Kumar Verma) JUDGE Madhurima