1 2025:CGHC:50213 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 14 of 2022 1 - Maniram Sonwani @ Bablu S/o Shri Bandhuram Sonwani Aged About 25 Years R/o Village Ghugharikala, Parshuamba, Police Station - Kusmi, District - Balrampur - Ramanujganj (Chhattisgarh), ... Appellant versus 1 - The State Of Chhattisgarh Through Police Station - Shankargarh, Balrampur - Ramanujganj (Chhattisgarh), District : Balrampur, Chhattisgarh ... Respondent For appellant : Mr. Roopram Naik, Adv. For Respondent : Mr. Shailesh Puriya, Panel Lawyer. (Hon’ble Shri Naresh Kumar Chandravanshi, J) JUDGMENT ON BOARD 8-10-2025 1. This criminal appeal has been preferred by the appellant/accused against the judgment of conviction and order of sentence dated 15-12- 2021 passed by the Upper Sessions Judge/Fast Track Special Court (POCSO Act), Ramanujganj, Distt. Balrampur (CG) (henceforth referred to as ‘Special Judge’) in Special Sessions (POCSO) Case No. 33/2016, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- Digitally signed by AVANISH KUMAR PATHAK Date: 2025.10.15 10:48:17 +0530 2 Conviction under Section Jail Sentence Fine Sentence Default stipulation 363, IPC RI for 3 years Rs. 5000/- RI for 1 month 2. The case of the prosecution, in brief, is that, on 15.02.2016, the father of the prosecutrix (P.W. 1), submitted a written complaint (Ex.P-1) at the Shankargarh police station to the effect that on 27.01.2016, the accused Maniram had lured away his minor daughter/prosecutrix and taken her away somewhere, and she could not be traced. Based on the above report, a First Information Report (Ex.P-2) was registered against the appellant/accused under sections 363 and 366A of the Indian Penal Code and an investigation was initiated. On 5-7-2016, the prosecutrix was recovered by the police from Jhopadipara, Rourkela, Orisha vide Recovery Panchnama (Ex. P-6). Spot map (Ex. P-3) was prepared by the police and Spot map (Ex. P-4) was prepared by the Patwari. The statements of the victim and witnesses were recorded. During the investigation, the underwear worn by the prosecutrix at the time of the incident was seized as per seizure memo Ex.P-7. Undergarment of the appellant/ accused was seized vide Ex. P-8. The prosecutrix's 10th class mark sheet was seized vide seizure memo Ex.P-5 from complainant (P.W. 1). On 02.08.2016, the Principal of Government High School, Kothali produced the attested copy of the Dakhil Kharij register regarding the date of birth of the victim and the same was seized as per seizure memo Ex. P-14. On 05.07.2016, the accused was arrested vide Ex.P-9. The prosecutrix was medically examined by Dr. Shashikala Toppo (P.W. 4), who vide MLC report Ex. P-12 opined that no definite opinion can be given regarding forceful recent intercourse with the victim. She prepared two vaginal slides. The vaginal slides and pubic hairs of the prosecutrix were sent for chemical examination. Vide FSL report (Ex. P-22), it has been 3 reported that in underwears of accused and prosecutrix (Article ‘A’ and ‘B’ respectively), semen stains and human spermatozoa were found, whereas in vaginal slides and pubic hair of the prosecutrix, semen and human spermatozoa were not found. Appellant/accused was also medically examined by Dr. Amit Kumar (P.W. 6), who vide his report (Ex. P-15) opined that, he was able to perform sexual intercourse. After usual investigation, charge sheet under Sections 363, 366A, Section 376(2)(n) of the IPC and Section 5(ठ)/6 of the Protection of Children from Sexual Offences Act, 2012 (henceforth, referred to as ‘POCSO Act’) was filed. 3. Learned Special Judge framed charges under Sections 363, 366-A, and Section 6 of the POCSO Act, alternatively, Section 376(2)(n) of the IPC. 4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 12 witnesses and exhibited 22 documents. Statement of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he denied the incriminating circumstances appearing against him and pleaded innocence. No witnesses have been examined by the appellant-accused in his defence, however he exhibited one document Ex. D-1, police statement of father of prosecutrix. 5. The trial Court upon appreciation of oral and documentary evidence available on record, vide its judgment dated 15-12-2021, acquitted the appellant/accused of the offence under Section 366-A, 376(2)(n) of the IPC and Section 6 of the POCSO Act, but convicted and sentenced 4 him, as mentioned in the opening paragraph of this judgment, against which, this appeal has been filed by him. 6. Learned counsel for the appellant submits that, in recent case, the victim has not been examined by the prosecution, as she died after filing of charge sheet. The victim was found dead on 8-12-2017 along with other boy namely Dablu in forest. Therefore, in absence of evidence of victim, appellant/accused cannot be held guilty for said offence. He further submits that, in instant case, prosecution has examined P.W. 1, who is father of victim, P.W. 2, who is mother of the victim and Sukhram (P.W. 11), who is Mausa of the victim, but none of these witnesses has supported the case of the prosecution, rather they have not stated in their deposition in the Court or the police that, they have seen the victim going along with the appellant. Whole case of the prosecution is based on the evidence of brother of accused Heeralal alias Guddu (P.W. 3), who has allegedly informed Umesh, resident of village Ghughari that, the appellant/accused and the victim had gone to him and on being demanded money by them, he had given them money. But in the Court statement, he has completely turned hostile. Except P.W. 1, P.W. 2 and Sukhram (P.W. 11), other witnesses are formal witnesses. He further submits that, even the medical report of the victim is not positive in favour of prosecution. Though, FSL report is against the accused, but prosecution has not proved that the prosecutrix was recovered from the appellant. None of the witnesses has been examined by the prosecution to prove the fact that, the appellant had taken the victim with him from her village or kept her at Raurkela (Orissa). On the same set of evidence, learned Special Court 5 has acquitted the appellant/accused of the offence under Sections 366A, 376(2)(n) and Section 6 of the POCSO Act, but on the same set the evidence, appellant has been convicted for the offence under Section 363 of the IPC, which is completely illegal and perverse to the evidence available on record. Hence, it is prayed that, the appellant may be acquitted of aforesaid charge also. 7. Learned Panel Lawyer, appearing for the respondent/State supports the impugned judgment. 8. I have heard learned counsel for the parties, considered their rival submissions made and also went through the record of the trial Court with utmost circumspection. 9. In instant case, the victim/prosecutrix has not been examined because of her death. P.W. 1 is father, P.W. 2 is mother and P.W.11 Sukhram is mausa of the victim, P.W. 3 Heeralal alias Guddu is brother of accused. They are witnesses of facts and other witnesses are formal witnesses. P.W. 1 has deposed that, on 27-1-2016, her daughter went somewhere. During her search, he came to know from villagers of village Ghughari and Parsuamma that, appellant/accused is not at home and has gone somewhere, then he informed the police. He has further stated that one Umesh of village Ghughari had told him that, elder brother of appellant had told him that accused was demanding money and victim was also with him, but said Umesh has not been examined and brother of accused Heeralal alias Guddu (P.W. 3) has completely turned hostile. In para 5, P.W. 1 he has deposed that the 6 victim has told him that, the appellant had lured her away with the intention of marrying her. 10. P.W. 2 is the mother of the victim. She has stated that, the accused had taken her and after her recovery, she came to know that appellant had taken the victim making her his wife. She has admitted in cross- examination that she had not seen the victim going with accused. Sukhram (P.W. 11), who is Mausa of the victim, has stated that the appellant had lured the victim away from her home and took her to Rourkela, Orissa. He has also stated that the Police prepared the recovery memo (Ex. P-6) of the prosecutrix. As per Ex. P-6, the prosecutrix was recovered from Jhopdi Para, Raurkela, Orissa, in which P.W. 11 is witness No. 2. He has also admitted his signature in Ex. P-6, but in para 7 of cross-examination, he has specifically admitted that he did not go to Raurkela, Orissa along with police and father of the victim and the victim was not recovered in his presence. Therefore, in view of above testimony of P.W. 11, the Recovery Panchnama (Ex. P-6) becomes doubtful. Dilbagh Singh (P.W. 8) is investigating officer. He has stated that on 5-7-2016, he recovered the prosecutrix from Jhopadipara, Raurkela, Orissa from the rented house of Ghosiram, but witness of Ex. P-6 Sukhram has not supported the above deposition of the investigating officer and has stated that he did not go to Raurkela. In Recovery panchnama, it is not mentioned that victim was recovered from the appellant. It has been mentioned that she was recovered from the house of Ghosiram, but said Ghosiram has also not been examined. 7 11. In view of the above discussion, it is quite vivid that, no one has seen the appellant taking the victim with him. Recovery Panchnama (Ex. P- 6) is also not reliable as witness of the same has not supported the same. 12. In view of above discussion, no cogent evidence has been adduced by the prosecution to hold the appellant guilty under Section 363 of the IPC, but learned trial Court, without any lawful evidence, has convicted and sentenced him for offence under Section 363 of the IPC, therefore, the impugned judgment of conviction and order of sentence is not sustainable. 13. In the result, the appeal is allowed. Conviction and sentence imposed on the appellant under Section 363 of the IPC are set aside. He is acquitted of the said charge. The appellant is reported to be on bail. He needs not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 14. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. 15. The Criminal Appeal is allowed. Sd/- (Naresh Kumar Chandravanshi) Judge pathak