1 2025:CGHC:36536 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1031 of 2022 1 - Salit Patel @ Paaji S/o Late Lakhanlal Patel Aged About 19 Years R/o Fokatpara, Kasaridih, Ward No. 44 , Near Firozkirana Dukan , Durg, Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Durg District Durg, Chhattisgarh ... Respondent(s) For Appellant : Shri Aman Kesharwani, Advocate. For Respondent(s) : Miss Anuradha Jain, Panel Lawyer. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 28/07/2025 : 1. This Criminal Appeal filed under Section 374 (2) of the CrPC is directed against the judgment dated 05.04.2022 passed by the Special Court constituted under the Protection of Children from Sexual Offences Act, 2012 i.e. the Additional Sessions Judge, 4th FTC, Durg in Special ST (POCSO) No.182/2020 whereby the appellant has been convicted and sentenced as under :- Conviction Sentence KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.07.28 17:42:52 +0530 2 Under Section 457 of the IPC RI for 3 years with a fine of Rs.1,000/- Under Section 10 of the Protection of Children from Sexual Offences Act, 2012 RI for 5 years with a fine of Rs.2,000/- In default of payment of fine under both the Sections, the appellant is directed to undergo additional SI of 1- 1 month. 2. The prosecution case, in brief, is that on 27th October, 2020, in the night at about 2 am, the accused/appellant has committed lurking house trespass in the house of prosecutrix (PW-1) and further committed aggravated sexual assault on victim, who is below the age of 12 years. A written complaint was filed by the maternal aunt of the victim namely, PS (PW-2) at Police Chowki Padmanabhpur, District Durg, vide Ex.-P/3 wherein it has been mentioned that on the date of the incident, when the victim (PW-1) was sleeping, the accused/appellant entered her house and with bad intention touched the body of the victim and also tried to remove her underwear. While such act was being committed, the victim woke up and narrated the incident to her maternal aunt (PW-2) and on seeing PW-2, the accused/appellant fled away. On the basis of aforesaid information, FIR has been registered on 28th October, 2020 at Police Chowki Padmanabhpur at ‘0’ vide Ex.-P/14. 3. Crime details form was prepared vide Ex.-P/5. Birth certificate of the victim Article 1-A was seized vide Ex.-P/6. In the birth certificate, date of birth has been recorded as 7th December, 2009 and at the time of the incident, the victim was aged about 10 years & 10 months. Statements of the witnesses were recorded. After completion of the investigation, 3 charge sheet was filed. The accused/appellant abjured his guilt and claimed to be tried. 4. In order to bring home the charges, the prosecution examined as many as 10 witnesses and exhibited 16 documents (Vide Ex.-P/1 to P/16) and Article 1-A i.e. birth certificate. In the statement recorded under Section 313 of the CrPC, the appellant has stated that he has been falsely implicated, however, he has not adduced any defence evidence. 5. The trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned above. It is pertinent to mention that the appellant was also convicted under Section 354 of the IPC, however, he was sentenced only under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) since maximum sentence is prescribed under the POCSO Act. 6. Learned counsel for the appellant would submit that the trial Court has not appreciated the evidence in proper perspective. The neighbour of the victim namely, PW-7 has categorically stated that the appellant has entered the house for committing theft of mobile of the victim and there was no intention on the part of the appellant to outrage the modesty of the victim or to sexually assault her and, therefore, offence under the POCSO Act is not made out. He would submit that conviction under Sections 354 of the IPC and under Section 10 of the POCSO Act would not be sustainable. For the offence of lurking house trespass under Section 457 of the IPC, the trial Court has awarded RI for 3 years whereas the accused/appellant has already suffered the jail sentence of 4 about 4 years & 5 months and as such, the appellant has already completed the aforesaid sentence. 7. Per contra, learned State Counsel would support the impugned judgment on submission that the prosecution has been able to prove the case beyond reasonable doubt and at the relevant time, the victim was under 12 years of age, the birth certificate i.e. Article 1-A has been proved, which has been registered in the year 2010; the victim and other relatives have categorically deposed about the incident. Therefore, the trial Court has rightly convicted the appellant and the impugned judgment is well merited which does not call for any interference. 8. I have heard learned counsel for the parties, considered their submissions made hereinabove and also went through the records with utmost circumspection. 9. The victim/prosecutrix (PW-1) has categorically deposed that on the date of the incident, in the night, when she was sleeping in the house of her maternal aunt (PW-2), the accused/appellant has entered her room and touched her body with bad intention and also tried to remove her underwear. She raised hue and cry and informed the incident to her maternal aunt (PW-2) and grandmother (PW-7). When her maternal aunt (PW-2) went to the courtyard of her house, she found that the appellant was present. (PW-2) PS has also deposed in similar lines. She has stated that she caught hold of the appellant and called her mother and brother and thereafter other neighbours also assembled there and they have lodged the Police complaint vide Ex.-P/3. 5 10. During investigation, the Police has seized the birth certificate of the victim i.e. Article 1-A wherein the date of birth of the victim was recorded as 7th December, 2009. PW-7, neighbour, has deposed that the accused/appellant has entered the house for committing theft of mobile of the victim. She has further deposed that after committing the said crime, the accused/appellant also misbehaved with the victim. 11. Taking into consideration the minor discrepancies in the statements of witnesses which do not go to the root of the matter, this Court does not find any material or good ground to discard the reliable testimonies of the victim and her maternal aunt (PW-2) and other witnesses adduced by the prosecution inasmuch as it is established that on the date of the incident the accused/appellant entered the house of the victim and committed aggravated sexual assault on the victim who was below 12 years of age. 12. On the basis of aforesaid discussion, this Court is of the considered opinion that conviction and sentence imposed on the appellant under Section 457 of the IPC and under Section 10 of the POCSO Act are just and proper, and the same are hereby affirmed. 13. In the result, the Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Barve