1 / 5 2025:CGHC:2611 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1145 of 2021 1 - Shiv Prasad Tiwari S/o Late Thanva Prasad Tiwari Aged About 60 Years R/o Village - Bortalab, Ward No. 2, Thana - Bortalab, District - Rajnandgaon (Chhattisgarh) ... Appellant versus 1 - State of Chhattisgarh Through Thana - Bortalab, District - Rajnandgaon (Chhattisgarh) ... Respondent For Appellant : Mr. Arvind Prasad, Advocate For State : Ms. Pragya Shrivastava, Dy. GA (Hon’ble Shri Justice Arvind Kumar Verma) Order on Board 15/01/2025 1. The instant appeal under Section 374 (2) of the Cr.P.C. has been filed against the judgment of conviction and order of sentence dated 20/09/2021 passed by the Additional Sessions Judge, Dongargarh, District Rajnandgaon, C.G. in Special Criminal Case No.09/2019 whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 354 of Indian Penal Code R.I. for 5 Years and fine of Rs.500/- in default of payment of fine additional R.I. for 1 Month Under Section 506 Part II of Indian Penal Code R.I. for 7 Years and fine of Rs.1000/- in default of payment of fine additional R.I. for 2 months. ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.02.20 11:02:17 +0530 2 / 5 Under Section 10 of Protection of Children from Sexual Offences Act 2012 R.I. for 7 Years and fine of Rs.1000/- in default of payment of fine additional R.I. for 2 months. 2. The prosecution case in brief is that the victim's mother appeared in the Bortalab police station and lodged an oral report stating that she has two children, whom she had left with her mother in Durg during the summer vacation. On 25.04.2019, her mother called her and told her that her brother's wife Sonam Tiwari had taken both her children with her to her maternal home Bortalab on 23.04.2019. Thereafter, on 08.05.2019 the complainant came to Bortalab to pick up her children. When she was taking both her children home by train at that time her daughter/victim disclosed that Shivprasad Tiwari used to come home in the afternoon and forcibly used to keep the victim in his lap and used to kiss her cheeks and press her breasts forcefully, when she screamed, he used to close her mouth with his hand and extended threat that if she tells anyone about this, then he will kill her and bury her in the ground. When the victim told the above to her aunt at home, her aunt Sonam Tiwari beat her and threatened her not to tell anyone, otherwise she will kill her. Accused Shivprasad Tiwari used to come home every afternoon and do dirty things with her and accused Sonam Tiwari did nothing even after knowing everything. When the victim told the above facts, she saw that the cheeks and chest of his daughter/victim were swollen and there were scratch marks on her neck and chest. Based on the above report of the complainant, an offence was registered against the accused under Sections 354, 323, 506 of the Indian Penal Code and Sections 8, 10 of 3 / 5 the Protection of Children from Sexual Offences Act, 2012 at Bortalab Police Station and investigation was carried out. 3. During the course of trial, the appellant abjured his guilt and claimed to be tried. The prosecution on their behalf had examined as many as 16 witnesses. The Court after evaluating the evidence and the circumstances, in which the incident happened convicted the appellant/accused as aforesaid. Hence this appeal. 4. Learned counsel for the appellant contended that the prosecution witnesses have not supported the case of the prosecution and there is contradiction and omission in the statement of the victim given under Section 161 & 164 Cr.P.C. He would next contend that the said incident as alleged has not happened actually and the appellant has been falsely implicated in this case. He would lastly submit that the order of the trial Court is bad and the same deserves to be set aside. 5. Per contra, learned State counsel opposes the arguments advanced by learned counsel for the appellant and submits that the order of the Court below is well merited which do not call for any interference. 6. I have heard learned counsel for the parties and perused the evidence. 7. Victim (PW-04) and victim's father (PW-05) have stated the age of the the victimto be 13.08.2008. The said statement of the witnesses have not been challenged by the defence in their cross-examination nor has any statement been given by the said witnesses regarding the victim's age being some other date and not 13.08.2008. The victim's aunt (PW 10) has also stated the age of the victim to be about 10-11 years. The defence 4 / 5 has also not given any suggestion to the said witness in this regard that the victim's age was more than 12 years. 8. The mother of the victim (PW1) has stated that the date of birth of the victim is 13.09.2009 but the said witness has also stated that the age of the victim is currently 10 years. Although the mother of the victim (PW1) has stated the date of birth of the victim incorrectly, but even if we consider the age of the victim according to the said date of birth, then the age of the victim is not more than 12 years. The defense has also not given any suggestion to the mother of the victim (PW1) regarding the age of the victim. 9. The principal of the victim's school (PW2) has stated in her examination- in-chief that the victim's admission date is mentioned as 06.07.2015 and admission number 3441 and the victim's date of birth is mentioned as 13.08.2008 in serial number 48 in the Dakhil Kharij register article A-1 and article A-1C. The witness's above statements have been irrefutable during her cross-examination. The said witness admitted in her cross- examination that she is not the author of the Dakhil Kharij Register. 10.According to the Dakhal Kharij Register Article A-1 and A-1C, the victim's Class 1st mark sheet and Birth Certificate Article A-2C, the victim's date of birth is 13.08.2008, which has also been confirmed by the testimony of the victim (PW 4) and the victim's father (PW 5). No document has been produced by the defence to refute the said document. Therefore, the seized Dakhal Kharij Register Article A-1 and A-1C in the case, the victim's Class 1st mark sheet and the victim's Birth Certificate are conclusive evidence regarding the age of the victim. Thus, in the 5 / 5 light of the oral statements of the witnesses available in the case; and the seized documents, the date of birth of the victim (PW-04) is found to be 13.08.2008. The incident is of 24.04.2019. Therefore, the age of the victim at the time of the incident appears to be about 10 years 08 months 11 days. Thus, it is found to be proved in the case that on the date of the incident, the age of the victim (PW-04) was less than 12 years. 11. Now coming to the conviction and quantum of sentence, since the appellant is reported to be in jail since 13/05/2019 to 16/08/2019 and since 20/09/2021, he do not have any previous antecedents in similar nature and the maximum sentence prescribed under Section 10 of the POCSO, this Court is of the opinion that sentence imposed by trial Court upon the appellant (RI for 7years) appears to be on higher side. So keeping in view all the circumstances, mentioned above, ends of justice will be served if the sentence imposed upon appellant is reduced from RI for 7 years to RI for 05 years. 12. In the result, appeal is allowed in part. While maintaining the conviction of appellant under Sections 354, 506 Part-II and Section 10 of the Protection of Children from Sexual Offences Act, 2012 the sentence imposed upon the appellant by the trial Court is reduced from RI for 07 years to RI 05 years. Sentence of fine, however, imposed by the trial Court is hereby maintained. 13. Accordingly, the appeal is partly allowed. SD/- (Arvind Kumar Verma) JUDGE ashu