1 2025:CGHC:37034 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1317 of 2025 1 - Deva Yadav S/o Ram Khilawan, Aged About 21 Years, R/o Laxman Ban Talab, Korba, District Korba C.G. ... Appellant versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Kotwali, District Korba C.G. ... Respondent For Appellant : Mr. Aman Tamboli, Advocate For State/Respondent : Mr. Vivek Sharma, P.L. Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 29/07/2025 1 The present appeal under Section 415(2) of the BNSS, 2023 has been filed challenging the judgment of conviction and order of sentence dated 19.03.2025 passed by learned Additional Sessions Judge, FTSC (POCSO), Korba, District-Korba (C.G.), in Special Case (POCSO) No. 49/2024 whereby the appellant has been convicted and sentenced as under : Conviction Sentence U/s 75(1)(ii) of the BNS, 2023 Rigorous imprisonment for 01 year with fine of Rs.10,000/-, in default of payment of fine amount, additional rigorous imprisonment for 03 months. 2 The case of prosecution, in brief, is that on 26.08.2024, the SOURABH PATEL Digitally signed by SOURABH PATEL Date: 2025.07.31 09:43:58 +0530 2 victim (PW-2) submitted a written complaint to the Kotwali Police Station, Korba, alleging that the accused/appellant Dewa Yadav, a resident of her neighborhood, had made obscene phone calls to her on 21.08.2024, at about 8:30 p.m. using mobile number 7773806537. During the call, the appellant allegedly used filthy language and threatened to harm her. Further, on 26.08.2024, at about 11:30 a.m., near the Gandhi Chowk Over Bridge, in front of the Kotwali Police Station, Korba, the appellant allegedly harassed the victim by asking her to kiss him and have a relationship with him, and touched her with ill intent despite her repeated requests to leave her alone. The appellant continued to harass the victim and her family members. Based on the complaint, an offence was registered against the appellant under Sections 296, 351(2), and 74 of the Bharatiya Nyaya Sanhita (BNS) 2023, and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, and the appellant was arrested for the aforesaid offences. 3 So as to hold the appellant guilty, the prosecution has examined as many as 06 witnesses and exhibited 10 documents. The statement of the appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. 4 The trial Court, taking into consideration the evidences which have come on record, vide impugned judgment dated 19.03.2025 found the appellant guilty for the offence punishable under Section 75(1)(ii) of the BNS, 2023 and accordingly, convicted and sentenced him under the said section as mentioned in paragraph-1 of this judgment leading to the filing of this appeal. 5 Learned counsel for the appellant submits that he is not pressing the appeal so far as it relates to the conviction part of the judgment and would confine his argument to the sentence part thereof only. According to him, the maximum sentence 3 imposed upon the appellant is 01 year, out of which the appellant has already served the jail sentence from 11.09.2024 to 14.07.2025 about more than 10 months. There is no criminal antecedent against the appellant. Hence, considering all theses facts, the sentence imposed upon the appellant may be reduced to the period already undergone by him. 6 Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the counsel for appellant. 7 Heard learned counsel for the parties and perused the record. 8 Having gone through the material available on record and the statements of Mother of the victim (PW-1), Victim (PW-2), Father of the victim (PW-3), Kiran Gupta (PW-4), Ramkrishna Aditya (PW-5), the involvement of the appellant in the crime in question is clearly established. This Court does not find any illegality in the findings recorded by the Trial Court as regards conviction of the appellant for the offence punishable under Section 75(1)(ii) of BNS, 2023 9 As regards sentence, in the matter of Mohammad Giasuddin v. State of Andhra Pradesh reported in (1977) 3 SCC 287, Hon’ble Supreme Court has observed that if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in para-9 as follows: “9. Western jurisprudes and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it’. George Nicodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub- culture that leads to anti-social behaviour has to be 4 countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences.” 10 In the light of the decision of the Supreme Court in the case of Mohammad Giasuddin (supra) and keeping in view the fact that maximum sentence imposed upon the appellant is 01 year, out of which he has already served the jail sentence from 11.09.2024 to 14.07.2025 about more than 10 months, no criminal antecedent of the appellant is recorded in the arrest memo, he has studied upto 08th class and working as a Painter and also considering the facts and circumstances of the case, this Court is of the opinion that the ends of justice would serve if the appellant is sentenced to the period already undergone by him. 11 Accordingly, the conviction of the appellant under Section 75(1) (ii) of the BNS is maintained but his jail sentence is reduced to the period already undergone by him i.e. more than 10 months. However, the fine imposed upon the appellant by the Trial Court shall remain intact. 12 Consequently, the appeal is allowed in part to the extent indicated herein-above. 13 The appellant is on bail. He need not surrender in this case. 5 However, his bail bond shall remain in force for a period of six months. 14 Record of the trial Court along with a copy of this judgment be sent back forthwith for compliance and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) JUDGE Sourabh P.