NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1216 of 2018 {Arising out of the judgment dated 03.08.2018 passed in Special Criminal (POCSO) Case No.02/2014 by the learned Special Judge (POCSO) Katghora, District Korba}

1.Rajesh @ Rajendra Porte, S/o. Dashrath Porte, Aged About 23 Years, R/o.Village- Kalmiduggu, Dhanuharpara, Darri, Police Station- Darri, District- Korba, Chhattisgarh.

2.Rajendra Prasad @ Lalu, S/o. Manharan Khairwar, Aged About 22 Years, R/o.Village- Kalmiduggu, Dhanuharpara, Darri, Police Station- Darri, District- Korba, Chhattisgarh.

3.Bhagbali, S/o. Jawaharlal Dhruw, Aged About 21 Years, R/o. Village- Kalmiduggu, Dhanuharpara, Darri, Police Station- Darri, District- Korba, Chhattisgarh.

---Appellants Versus State Of Chhattisgarh, Through The Station House Officer, Police Station Darri, District Korba, Chhattisgarh.

---Respondent (Cause Title taken from Case Information System)

For Appellants : Mr. Aditya Khare, Advocate For Respondent : Mr. H.A.P.S. Bhatia, Panel Lawyer (Division Bench)

Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (24.07.2024)

Sanjay K. Agrawal, J.

1. The appellants herein i.e. A-1 Rajesh, A-2 Rajendra & A-3 Bhagbali have preferred this appeal under Section 374(2)

of Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 03.08.2018 passed by the learned Special Judge (POCSO) Katghora, District Korba in Special Criminal (POCSO) Case No.02/2014, by which, each of them has been convicted for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and sentenced to undergo life imprisonment and to pay fine of Rs.2000/-, in default of payment of fine, to suffer additional 2 months rigorous imprisonment.

2. Case of the prosecution, in brief, is that on 21.12.2013 at about 6:00 p.m., near Mini Power Plant at Sanjaynagar, the three appellants herein in furtherance of their common intention caught hold of the minor victim (PW-3), aged about 14 years and committed sexual intercourse with her and thereby, the offence has been committed. On the same day, PW-4, sister of the victim, reported the matter to the police, pursuant to which, FIR was registered vide Ex.P-2. During investigation, spot map was prepared vide Ex.P-5 and the victim was medically examined by Dr. Smt. S. Shrivastava (PW-8), who proved the MLC Report (Ex.P-14) in which no injuries were found on the body of the victim. After usual formalities and on completion of the investigation, the appellants herein were firstly charge-sheeted for the offences under Sections 354(A)(1)/34, 354(B)/34, 506/34 of I.P.C. and Section 8 of the POCSO Act and thereafter during the course of trial Section 376(D) and Section 4 of the POCSO Act were also added.

3. In order to bring home the offence, prosecution examined as many as 8 witnesses and exhibited 14 documents and the appellants-accused in support of their defence have examined DW-1 & DW-2 and exhibited the document Ex.D-1.

4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants for the offence under Section 4 of the POCSO Act and sentenced them to undergo life imprisonment, against which the present appeal has been preferred.

5. Mr. Aditya Khare, learned counsel for the appellants would submit that, at the first instance, offences under Sections 354(A)(1)/34, 354(B)/34, 506/34 of I.P.C. and Section 8 of the POCSO Act were registered against the appellants and later on Section 376(D) of IPC as well as Section 4 of the POCSO Act were added during the course of trial, whereas there is no allegation in this regard in the FIR and the statement of the victim recorded under Section 161 Cr.P.C. as well. Therefore, it is a clear case of exaggeration and improvement by victim, as the appellants have been falsely implicated in the instant case. Even otherwise, at the mo