Page No.1 of 10 IN CRA-1000-2019 2025:CGHC:6253-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1000 of 20 19 [Arising out of judgment dated 17.05.2019, passed in Special Sessions Case No.19 of 2018 (State of Chhattisgarh v. Baliram Baghel @ Matwar), by the Additional Charge Sessions Judge (FTC), Jagdalpur (C.G.)] Baliram Baghel @ Matwar, Son of Deenbandhu Baghel, aged about 30 years, Resident of Pthraguda, Near Mata Mandir, Jagdalpur, District Bastar (Chhattisgarh) ---- Appellant (In Jail) Versus State of Chhattisgarh, through Police Station Kotwali, District Bastar (Chhattisgarh) ---- Respondent ------------------------------------------------------------------------------------------- For Appellant : Mr. Vikas A. Shrivastava, Advocate For Respondent : Mr. Ashutosh Shukla, Panel Lawyer ------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justic e Sanjay Kumar Jaiswal Judgment on Board (04.02.2025) Sanjay K. Agrawal, J (1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 17.05.2019, passed in Special Sessions Case No.19 of 2018 (State of Chhattisgarh v. Baliram Baghel @ Matwar), by the Additional Charge Sessions Judge (FTC), Jagdalpur (C.G.), whereby he has been convicted and SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.02.07 15:12:18 +0530 Page No.2 of 10 IN CRA-1000-2019 sentenced as under: Conviction Sentence U/s. 06 of POCSO Act Imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment for 01 month. U/s. 450 of IPC Rigorous imprisonment for 10 years with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment for 01 month. [Both the sentences are directed to run concurrently] (2) The case of the prosecution, in short, is that on 14.05.2018, at about 12:30 hours, the accused-appellant herein, with the intent to commit sexual intercourse with the minor victim (PW-01), aged about 04 years (i.e. below 12 years), firstly trespassed into the rental house of victim’s father (PW-02), which comes within the ambit of Police Station Kotwali, Bastar (CG) and, thereafter, committed sexual assault on the minor victim (PW-01) and, thereby, said to have committed the aforesaid offences. (3) The further case of the prosecution is that when father of the victim (PW-02) reported the matter to the police by submitted written complaint (Ex.P/07), FIR (Ex.P/01) was registered against the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/05. After obtaining necessary consent vide Ex.P/03 & Ex.P/08, the victim (PW-01) was subjected to medical examination, which was conducted by Dr. Priyanka Choudhary (PW-10) and, as per her MLC report (Ex.P/13), it has Page No.3 of 10 IN CRA-1000-2019 been opined that neither any internal nor external injuries were found over the body of the victim (PW-01) and, according to the physical examination, no signs were found showing forceful act on her. Further, samples of buccal smear swab, vaginal smear swab and nail clipping from the victim (PW-01) were collected, prepared and handed over to the police for analysis, which were seized vide Ex.P/16. Thereafter, the appellant was arrested vide Ex.P/10 and sent for medical examination. Appellant’s MLC report is Ex.P/11 and further his undergarment was also seized for analysis vide Ex.P/09. The aforesaid seized articles were sent for chemical analysis and, as per FSL report (Ex.P/27), it has been opined that stains of semen/human sperm were found only on the undergarment of the appellant. In order to ascertain correct age of the victim (PW-01), her birth certificate (Ex.P/C-01) was also obtained/seized vide Ex.P/04, wherein her date of birth has been recorded as 22.11.2013, meaning thereby, the victim (PW-01) was minor aged about 04 years 06 months (i.e. less than 12 years) on the date of offence. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge- sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. Page No.4 of 10 IN CRA-1000-2019 (4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 28 documents apart from Ex.P/C-01, whereas the appellant in support of his defence, though examined 04 witnesses, but not exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offences punishable under Section 450 of IPC as also under Section 06 of the POCSO Act, 2012 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Vikas A. Shrivastava, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences, as the prosecution has failed to prove the same beyond reasonable doubt. Neither medical evidence nor forensic evidence support the case of the prosecution, in absence of which, the appellant is entitled for acquittal on the basis of benefit of doubt. In alternative, learned counsel vehemently argued that considering the statement of the victim (PW-01) and other prosecution witnesses coupled with other evidence available on record, it is quite clear that in the present case, the appellant has not committed offence of “aggravated penetrative sexual assault” with the victim (PW-01), punishable Page No.5 of 10 IN CRA-1000-2019 under Section 06 of the POSCO, but instead thereof, his case would fall under the definition of “aggravated sexual assault” defined under Section 9(m) of the POCSO Act, punishable under Section 10 of the POSCO Act, wherein the maximum punishment/sentence has been prescribed to be 07 years. Therefore, the appellant’s conviction for offence under Section 06 of the POCSO Act be altered to Section 10 of the POCSO Act and he be sentenced for the same accordingly. Hence, the present appeal be allowed in full or in part. (7) Per-contra, learned State counsel would submit that the prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-01), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question coupled with other evidence available on record, the trial Court has rightly convicted the appellant for the offences mentioned herein-above. He also contends that it is not a case where the conviction and sentence of the appellant can be altered to any other offence. Hence, the appeal is liable to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) In the present case, the case of the prosecution it totally based on the statements of victim (PW-01) and that of her neighbours, Page No.6 of 10 IN CRA-1000-2019 namely, Shardha Sahu (PW-04) and Smt. Reeta Sahu (PW-05). A careful perusal of the statement of victim (PW-01) would show that in Para-02 she has clearly stated that on the date and time of the offence while she was all alone in her house, the appellant unauthorizedly entered into her house, put off his pants and shown his private part to her. The appellant also removed victim’s clothes and, thereafter, forcibly took her to the bed and tried to make physical intercouse with her and, for which, she slept over her body, however, at that juncture, when Shardha Sahu (PW-04) reached to the victim house, seeing whom, the appellant ran away from the spot. Further, the victim (PW-01) during her cross-examination in Para-09 also has reiterated her said version by stating that on the date of occurrence, the appellant has shown his private part to her and removed her clothes and, further for making physical intercourse, the appellant slept over her body, but when Shardha Sahu (PW-04) reached there, the appellant ran away from the premises. Furthermore, the said stand of the victim has further been supported by the evidence of Shardha Sahu (PW-04) and Smt. Reeta Sahu (PW-05). Shardha Sahu (PW-04) has stated before the Court that on the date and time of the offence while she was going to shop, she heard the hue and cry of the victim (PW-01), upon which, she saw that the appellant was taking the victim into her house by caught holding her mouth. Thereafter, when she informed about the said incident to her mother- Reeta Sahu (PW-05), they Page No.7 of 10 IN CRA-1000-2019 both reached to the house of the victim (PW-01) and saw that the appellant and the victim (PW-01) were lying naked on the bed and, after which, the appellant left the premises and the matter was informed to the father of the victim (PW-02). Similarly, Reeta Sahu (PW-05) has also stated before the Court that when her daughter informed her about the incident of appellant taking the victim to her house, she alongwith her daughter- Shardha Sahu (PW-04) reached to the house of the victim and saw that the appellant and the deceased both were lying naked on the bed and, seeing whom, the appellant ran away from the spot. Both the said witnesses, namely, Shardha Sahu (PW-04) and Smt. Reeta Sahu (PW-05) were subjected to cross-examination, but they remained consistent in their version. (10) As such, on the basis of the aforesaid statements of the victim (PW-01) and that of Shardha Sahu (PW-04) and Smt. Reeta Sahu (PW-05), it is clear like noon day that on the date and time of the offence the appellant herein firstly trespassed into the house of the victim and, thereafter, shown his private part to the victim, removed her clothes, caught hold the mouth of the victim and lie down on her and, when, Shardha Sahu (PW-04) and Smt. Reeta Sahu (PW- 05) reached there, the appellant ran away from the spot. Therefore, the said act of the appellant would fall within the purview of “aggravated sexual assault” defined under Section 9 of POCSO Act, as there is no evidence available on record to show that the Page No.8 of 10 IN CRA-1000-2019 appellant has committed “aggravated penetrative sexual assault” with the minor victim (PW-01), punishable under Section 06 of the POCSO Act. Moreover, according to victim’s birth certificate (Ex.P/C-01), her date of birth has been recorded as 22.11.2013, meaning thereby, the victim (PW-01) was minor aged about 04 years 06 months (i.e. less than 12 years) on the date of offence and, consequently, the appellant is liable to be convicted for offence under Section 9(m) of the POCSO Act, which is punishable under Section 10 of the POCSO Act. Thus, on the basis of aforesaid evidence available on record, the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 06 of the POCSO Act, whereas he ought to have been convicted for offence under Section 10 of the POCSO Act for having committed offence of aggravated sexual assault on the minor victim (PW-01), who was aged about less than 12 years on the date of offence, as defined under Section 9(m) of the POSCO Act. We hereby hold accordingly. (11) Now, so far as conviction of the appellant for offence under Section 450 of IPC is concerned, the same relates to illegal act of house-trespassing with the intent to commit any other offence punishable with imprisonment for life. However, in the present case, as analyzed above, the appellant has been held to be guilty for committing offence under Section 9(m) of the POSCO Act, which is punishable under Section 10 of the POSCO Act and, the maximum Page No.9 of 10 IN CRA-1000-2019 sentence prescribed for the same, is 07 years. Therefore, under the facts and circumstances of the presence case, it would be appropriate to alter/convert the conviction of the appellant for offence under Section 450 of IPC to that of 454 of IPC, which relates to act of house-trespassing or house-breaking with the intent to commit any other offence punishable with imprisonment. We hereby hold accordingly. (12) Concludingly, in view of foregoing analysis, we order accordingly: (i) the conviction and sentence of the appellant for offence under Section 06 of POCSO Act is hereby set aside and, instead thereof, he is convicted for offence under Section 10 of POCSO Act and sentenced to undergo rigorous imprisonment for 07 years. (ii) the conviction and sentence of the appellant for offence under Section 450 of IPC is also hereby set aside and, instead thereof, he is convicted for offence under Section 454 of IPC and sentenced to undergo rigorous imprisonment for 03 years. (iii) however, the fine sentence and default stipulation for both the offences, as imposed upon the appellant by the learned trial Court, alongwith the direction that both the sentences shall run concurrently, shall remain Page No.10 of 10 IN CRA-1000-2019 intact. (13) Consequently, this criminal appeal is partly allowed to the extent indicated herein-above. (14) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if