1 2025:CGHC:3678 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 979 of 2023 1 - Dilip Mukhiya, S/o Mahavir Mukhiya, Aged About 40 Years, R/o Basudeva Ward No. 11, Kahra, Police Station - Bangaon District Saharsa (Bihar), At Present R/o Nawagaon, Police Station - Kharsiya, District - Raigarh (Chhattisgarh) ... Appellant versus 1 - The State of Chhattisgarh Through The Police Station Kharsiya, District Raigarh (Chhattisgarh) ... Respondent For Appellant : Mr. Punit Ruparel, Advocate For Respondent/State : Mr. Akhilesh Kumar, G.A. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 21.01.2025 1. The appeal being arguable is admitted for hearing. 2. The appellant in this appeal under Section 374(2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction 2 and order of sentence dated 11.04.2023 passed by Additional Sessions Judge, F.T.S.C. (POCSO), District- Raigarh (C.G.) in Special Criminal Case under the POCSO Act No. 72/2021 whereby he stands convicted and sentenced as under:- Conviction Sentence Under Section 354 of Indian Penal Code R.I. for 2 years with fine of Rs.500/- in default of payment of fine amount, further to undergo R.I. for one month Under Section 10 of POCSO Act R.I. for 5 years with fine of Rs.1000/- in default of payment of fine amount, further to undergo R.I. for two months 3. Case of the prosecution, in brief, is that the father of the prosecutrix made a written complaint at Kharsia police station to the effect that four laborers Dilip Mukhiya and others have come to work under the Nal Jal Yojana in their village and have been living there for the past 24 months. On 25.10.2021 at about 6.00 p.m., his daughter/victim aged about 10 years went to her aunt’s house in the village, and was returning from there at about 7.00 pm, at that time the accused/appellant came there and saying that he would drop her home, he took her to the outer side of the Manjhimuda pond, near the Shivling Pachari and gagged the mouth of the prosecutrix and started molesting her with wrong intention. However, the victim ran away from there and after reaching home, she narrated the whole incident to her parents. On the basis of the said written complaint, FIR (Ex.P/3) bearing Crime No. 649/2021 was registered at Police Station- Kharsia for the offence punishable under Section 354 of the Indian Penal Code and Section 8 of the POCSO Act. 3 During investigation, the statement of the victim was recorded by police under Section 164 of the Code of Criminal Procedure and the accused was arrested and arrest memo was prepared vide Ex. P/15. On presenting the caste certificate of the victim by her father, Section 3 (1) B (1), 3 (2) (5) (a) of the Scheduled Caste / Scheduled Tribe Act was extended in the case as the victim belonged to the Scheduled Tribe Caste. The statements of the victim, her parents, brother and other witnesses were recorded. The spot map was prepared vide Ex.P/4. After completion of usual investigation, the charge sheet was filed against the appellant before the learned trial Court for the offence punishable under Sections 354, 506 of Indian Penal Code, Section 8 of POCSO Act and Section 3 (1) B (1), 3 (2) (5) (a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The learned trial Court framed the charges under Sections 354 and Section 10 of POCSO Act and Section 3(1)B(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, to which he abjured his guilt and prayed for trial. 4. In order to prove its case, the prosecution examined as many as 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence he did not adduce any evidence. 5. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment acquitted the appellant under Section 3(1)B(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and convicted the appellant 4 and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court is illegal and bad in Law. The appellant had not committed any of the offence, even not trying to outrage the modesty of the minor victim or sexual harassment with her, he is falsely implicated into the crime, due to revenge. The father of the prosecutrix gave written complaint before the Police Station, whereas he stated only thing of outrage the modesty of prosecutrix. The statement of the prosecutrix was recorded under Section 164 of Cr.P.C before the Judicial Magistrate First Class wherein she stated the same thing as mentioned in the written complaint, the said statement was recorded on 28.10.2021 whereas before the learned trial Court, prosecutrix exaggerated her version and levelled allegations which was not mentioned in the written complainant as well as in her statement recorded under Section 164 of Cr.P.C., which creates doubt upon the version of prosecutrix. Thus, it is clear that the prosecutrix changed her version in every stage of investigation and trial. Therefore, her statement is not reliable or not to safe to rely, further on the basis of such statements, the appellant cannot be convicted. It is clear from the previous statement of the victim that she only alleged the allegation of outrage the modesty but before the learned trial Court she made allegations of rape against the appellant. Statement of victim is not inspired confidence. Therefore, the appellant deserves to be acquitted. Alternatively, he submits that as per the FIR and statement of the prosecutrix, offence under Section 10 of POCSO Act is not made out. The offence is covered under Section 12 of POCSO Act and appellant 5 is in jail for about 3 years 2 months and 26 days. Therefore, he prays that his sentence may be reduced to the period already undergone by him. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of State (GNCT of Delhi) Vs. Vipin @ Lalla passed in Criminal Appeal No. 94 of 2025 decided on 07.01.2025. 7. On the other hand, learned counsel for the State supporting the impugned judgment submits that the learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 8. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 9. It is clear from the record of the learned trial Court that the learned trial Court framed the charges under Sections 354 of IPC, Section 10 of POCSO Act and Section 3(1)(B)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Learned trial Court after appreciating the oral and documentary evidence acquitted the appellant of the charge under Section 3(1)(B)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and convicted him for the offence under Sections 354 of IPC and 10 of POCSO Act. 10. Prosecutrix (P.W.-1) is 10 years old and she stated that on the date of the incident, the accused inserted his private part into her private part. She also stated that the accused/appellant was taking her with him by gagging her mouth. Thereafter, she narrated the whole incident to her parents. 11. Father of the prosecutrix (P.W.-2) stated that his daughter (prosecutrix) is aged about 11 years. On being asked, she told him that the 6 appellant/accused took her along with him by gagging her mouth and also threatened to kill her. Thereafter, he took her daughter (prosecutrix) to the place where the appellant was working where the prosecutrix pointed towards the appellant and said that he is the one who did it. Thereafter, he made the written complaint (Ex.P/2) at police station- Kharsiya. On the basis of said written complaint, FIR (Ex.P/3) was lodged against the appellant wherein he admitted his signature from A to A part. Spot map was prepared vide Ex. P/4 wherein he admitted his signature from A to A part. He further stated that he had given the victim’s mark-sheet and other documents to the police. Seizure memo is prepared vide Ex.P/7 wherein he admitted his signature from A to A part. In his cross-examination, he admitted that on being asked, the prosecutrix told him that the appellant held her arm with wrong intention and on raising alarm, he threatened to kill her. 12. Brother of the prosecutrix (P.W.-3) also stated that the victim told him that the accused took her by gagging her mouth. 13. Mother of the prosecutrix (P.W.-4) stated that the appellant took the victim along with him near Manjhimuda Pond and held her tightly by gagging her mouth. 14. Aunt of the prosecutrix (P.W.-5) did not support the prosecution case. Prosecution declared her hostile and cross-examined her but she denied all suggestions of the prosecution. 15. Upon perusal of the written complaint (Ex.P/2) made by father of the prosecutrix (P.W.-2), it is clear that the father of the victim alleged that, “………... ” पीड़िता के ुሯ ह के हथ से दबाकेर गलता ड़ियता से छेखा केर लग। 16. The statement of the prosecutrix (P.W.-1) recorded under Section 164 of Cr.P.C., clearly shows that before the Judicial Magistrate First Class, 7 prosecutrix stated that, “ुሯ उसे बास्ता तारफ छे द बा ल ता वह ुሯ झे से से जगह ुሯरघट के पीसे ल गय और ुሯर हथ से ुሯ ह बा%द केरके ुሯर छेता पीर हथ लग रह थ और बा ल ड़िके ड़िकेसे के के छे भी बाताओग ता ता म्ह) ुሯर द*%ग। बाद ुሯ) जबा यह पीशाबा केर गय ताबा ुሯ वह से भीग गई।” However, before the learned trial Court, she stated that the accused/appellant was trying to insert his private part into her private part and in her cross-examination, when she was asked as to whether she stated the same thing in her police statement (Ex.D/1) or not then, she replied in negative. 17. 17. Section 11 of the POCSO Act provides as under:- 11.Sexual harassment.-A person is said to commit sexual harassment upon a child when such person with sexual intent,-- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefor. 18. Section 12 of POCSO Act provides as under:- 12. Punishment for sexual harassment- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. 19. Thus, It is evident from the statement of the prosecutrix recorded under Section 164 of Cr.P.C and written complaint (Ex.P/2) filed by the father of the 8 prosecutrix that the accused/appellant tried only to molest the prosecutrix and not to commit sexual intercourse with her. However, the learned trial Court did not appreciate this fact and convicted the appellant for the offence under Section 10 of POCSO Act which is not in accordance with law. Learned trial Court rightly convicted the appellant under Section 354 of IPC but the offence under Section 10 of POCSO Act against the appellant is not made out, however the said offence is covered under Sections 11 and 12 of the POCSO Act. Therefore, the conviction of appellant is altered to section 354 of IPC read with Section 12 of POCSO Act. 20. As regards sentence, it is clear that the incident took place in the year 2021 and this appeal is pending since 2023. Appellant is in jail for about 3 years 2 months and 26 days. In these circumstances, this Court is of the opinion that the ends of justice would be served if he is sentenced to the period already undergone by him. 21. In view of the facts and circumstances of the case, this Court is of the opinion that the ends of justice would be met if the appellant is sentenced to the jail sentence of the period already undergone by him. Accordingly, his sentence is reduced to the period already undergone by him. However, the fine amount imposed by the trial Court shall remain intact. 22. With these modifications, the appeal is partly allowed. 23. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) Judge Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV